The defendant, Jose Juan Argumedo-Perez, remained in the United States illegally, in violation of 8 U.S.C. § 1326. He committed theft which turned out to be an aggravated felony because of a prior conviction of grand larceny in Virginia.
The US Court of Appeals vacated defendant’s sentence, and the case was remanded for resentencing.
If a defendant previously was deported, or unlawfully remained in the United States, after a conviction for an aggravated felony, his sentence increases by 8 levels [U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C)]. For this purpose aggravated felony includes a theft offense, particularly, receipt of stolen property [8 U.S.C.S. § 1101(a)(43)(G)].
Virginia legislature does not define larceny and courts use a common-law definition of larceny. According to common law larceny is the wrongful or fraudulent taking of another’s property without his permission and with the intent to permanently deprive the owner of that property. Although definition assumes fraudulent deprivation of the property without owner’s consent, the suspected act can still fall within the contemplation of a larceny conviction. Yet, larceny as in Virginia’s criminal law does not fit categorically within the generic definition of theft.
“The elements of larceny by false pretenses in Virginia are: (1) an intent to defraud; (2) an actual fraud; (3) use of false pretenses for the purpose of perpetrating the fraud; (4) accomplishment of the fraud by means of the false pretenses used for the purpose, that is, the false pretenses to some degree must have induced the owner to part with his property. In addition, both title to and possession of property must pass from the victim to the defendant or his nominee.”
Whether the court erred in subsuming aggravated felony sentencing enhancement for theft applied because of a prior conviction.
In the context of an enhancement under the U.S. Sentencing Guidelines, the United States Court of Appeals defined a theft offense as “the taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” The court tried to make distinction between theft and fraud by stating that “obtaining property without consent is a critical element of theft whereas fraud is accomplished with the victim’s fraudulently obtained, but voluntary.” In this regard the appellate court referred to 8 U.S.C.S. § 1101(a)(43)(M).